R. v. Ireland, 2018 BCPC 338

Citation: R. v. Ireland 2018 BCPC 338 Date: 20181207 File Nos: 175181-2-KC 175181-3-KA Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAYTON STEELE IRELAND ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. MAYLAND McKIMM Counsel for the Crown: J. Byrne Counsel for the Defendant: S. Cooper Place of Hearing: Victoria , B.C. Date of Hearing: December 6, 2018 Date of Judgment: December 7, 2018

[ 1 ] THE COURT: 9:45:21 This is an application pursuant to s. 810(1)(

a) seeking to place the respondent on a recognizance. It is alleged that the complainant is reasonably in fear that the respondent will cause her personal injury as a result of certain incidents that occurred between March 10, 2018, and July 16, 2018. For the reasons that follow, I am not satisfied that such a recognizance should be issued. Facts [ 2 ] The respondent and the complainant were in an on-again/off-again relationship for 12 months concluding in the fall of 2012.

Following the break-up, the respondent harassed and annoyed the complainant to such a degree that, in January 2014, he pled guilty to an allegation of harassing this complainant. He was placed on probation for a period of two years as a result of that behaviour. [ 3 ] While on bail awaiting trial on the charge of harassment, he was bound by a court order that he have no contact with the complainant and not attend at her residence. In breach of that court order, he was found by the police at the back door to her residence and was arrested.

He was ultimately released over the Crown's objection with a $10,000 surety bail. On the same date that he entered the guilty plea to harassment, he also accepted responsibility for his breach of the bail order. [ 4 ] There is no question that the harassing behaviour had a profound impact on the complainant. She changed her job, changed her address, changed her phone number, email address, and significantly limited her presence on social media.

She undertook a course of counselling to help her recover from the trauma caused by the respondent's criminal behaviour. [ 5 ] Probation ran from January 22, 2014, to January 22, 2016, which included no contact orders and was followed without further incident. However, not surprisingly, the behaviour of the respondent kept the complainant hypervigilant as it related to the respondent. [ 6 ] The facts that underlie this application begin on March 10, 2018. On that day, the complainant was enjoying a cup of coffee at a popular coffeehouse in the city and sitting on the deck with a friend.

She testified that she saw the respondent approach from the south, cross over the patio on which she was sitting at the coffee shop, and enter the coffee shop. She testified that the respondent sat for a period of time at the window apparently drinking his coffee and looking at her. [ 7 ] Her first reaction was to leave, but her companion suggested that she stay because it was his view that she was not in any danger. She agreed to stay.

Sometime thereafter, she looked again at the window where the respondent had been sitting, but it was apparent that he had left and she thought by the backdoor or other egress, but in any event he had not walked past her again. [ 8 ] She testified that later that same day she was with the same friend at a local public house when she saw the respondent enter the public house. She testified that he stood some distance away and stared at her.

She testified that he was still there when she left some hours later. [ 9 ] On July 14, the complainant was on a very popular local beach when she noticed the respondent walk by with a friend. He then sat down on the beach some four or five metres away with that friend. He would look in her direction regularly, but made no effort to communicate with her other than to make eye contact from time to time. It was her belief that he was laughing at her, as well. After 20 minutes to half an hour, the respondent and his friend got up and left the beach.

It was the complainant's evidence that his presence on the beach knowing that she was there upset her and put her in fear that his pattern of behaviour which had led to the previous harassment charges was starting again. [ 10 ] Finally, in September 2018, she was on that same beach again meditating with her eyes closed. When she opened her eyes, she saw that the respondent and his son were relatively close by throwing rocks into the ocean.

She was struck by the odd manner in which the respondent would pick up rocks which, in her opinion, seemed to be deliberately affected in a way that caused him to have regular eye contact with her. [ 11 ] The first incident on the beach she captured with a video on her cellular telephone. The second incident she also filmed with a still photograph from that same telephone. [ 12 ] The respondent testified. He advised the court that the harassment charges in 2014 were unfair and that he had not actually done anything to harass the complainant.

He testified that he was able to comply with his two-year probation order without incident. He further testified that any contact with the complainant which even she concedes happens from time to time as they live in a relatively small city and both frequent popular places, have caused him enormous anxiety and distress. [ 13 ] He testified that he saw the complainant on March 10 in a local park when he was on a walk with his girlfriend. He testified that he noticed her right away and explained to his girlfriend that they needed to leave the area which they promptly did.

He also confirmed that he did see the complainant that evening when he and his girlfriend attended the same local public house, but he had no contact with her other than noting that she was there and making a comment to his new girlfriend. [ 14 ] He denied that he was aware that the complainant was on the beach on either occasion alleged by the complainant. He suggested the complainant had dramatically changed her appearance by dyeing her hair blond, was wearing a sunhat, and reading a book.

He denied that he even knew where the complainant lived, although on cross-examination, he let it slip that he knew precisely what street the complainant resided on. He denied he ever saw the complainant at the local coffeehouse which is a regular coffeehouse for him. His perspective is that he is very much the victim of a campaign waged by the complainant. [ 15 ] The respondent also called his new girlfriend. Her evidence was dramatically different.

She testified that the first time she became aware of the complainant was at the coffeehouse when the respondent told her that the complainant was present and that they needed to keep walking. She agreed that the coffeehouse incident was in early March consistent with the evidence of the complainant. She also testified that she heard the respondent complain that the complainant was present at the public house later in the evening, although she never saw her there.

[16] The complainant's girlfriend also testified to an incident on November 11, 2018, where the respondent and she attended at theCenotaph for Remembrance Day services. On that occasion, the respondent again testified that he saw the complainant across the roadand had to make deliberate efforts to avoid contact. She testified that they crossed paths with the complainant again at a local shoppingcentre later that day.

Her evidence left the impression that the respondent had absolutely no difficulty whatsoever identifying thecomplainant instantly when he saw her on the street. [17] Finally, the respondent called the friend who had been with him on the beach on July 14 when they sat in proximity to thecomplainant.

The respondent's friend testified that the respondent made no comment about whether the complainant was anywhere inthe vicinity. [18] In this case, the burden is on the Crown to prove on the balance of probabilities that, as a result of the behaviour described inher evidence, the respondent is reasonably in fear of the complainant. A helpful analysis of the elements of the recognizance process isfound in the decision of R. v. Soungie, 2003 ABPC 121, and in particular at paragraph 46 where Judge Allen writes: Let me set out in point form the principles applicable to s. 810 applications: 1)

Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, theapplicant’s spouse, the applicant’s common law partner, the applicant’s children, or future damage to the applicant’s property. The Courtis allowed to intervene to prevent a breach of the peace prior to an actual offence being committed. 2)

Section 810 restrains the liberty of the defendant to live his or her life free from restraint of that liberty. 3) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is,the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protectiveintervention in appropriate circumstances.

Certainly, the Judge must be cautious in exercising discretion to affect the liberty of thesubject, but this caution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated theneed for the recognizance. 4) The applicant must actually fear that the defendant will cause personal injury to the applicant, the applicant’s spouse, theapplicant’s common law partner, the applicant’s children, or will cause damage to the applicant’s property. 5) The Judge must find that the applicant’s fears are reasonable, i.e., that an objective person armed with the same knowledge asthe applicant would agree that the applicant’s fear are reasonable.

The reasonable fear must be triggered by some action of thedefendant. 6) Evidence of the defendant’s previous misconduct is admissible to determine the basis for the belief’s held by the applicant. This evidence can be used by the Judge in determining whether the applicant’s fears are reasonable. 7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of futureharm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood. 8) The onus of persuasion is upon the applicant.

The applicant must satisfy the Judge on the balance of probabilities of thegrounds for the issuance of a recognizance. [19] This helpful analysis was adopted by my brother Judge Dyer in R. v. A.P.J., 2015 BCPC 149 , 2015 BCPC 0149, and Iagree with the analysis. [20] Two particular issues are alive in the case at bar. First, the question of whether or not the kind of harm for which thecomplainant fears is captured by the term "personal injury" in s. 810.

In this regard, I agree entirely with the submissions of Crowncounsel that psychological harm such as living in a constant state of fear or annoyance is captured by this section. In this regard, ofcourse, I adopt the analysis of my sister Judge Rounthwaite in R. v. Louis, [2013] B.C.J. No. 294, where she concludes that personalinjury in s. 810 includes both physical and psychological injury. In my view, this conclusion is entirely consistent with all the recentjurisprudence which considers the question of scope of physical harm in various sections of the Criminal Code.

See for example R. v.McCraw (SCC), [1991] 3 S.C.R. 72 [S.C.C.] [21] The second live issue is, really, whether or not the fear expressed by the complainant in the case at bar is a reasonable one as Imust find it to be before an order restraining the respondent's liberty is made. In this regard, I am bound by the analysis ofreasonableness as found in R. v. Dol, 2004 BCSC 1438, where Mr. Justice Parrett, writes at paragraph 32: [32] Having concluded that the informant's fear was a real fear the judge, in the court below, was left with the issue of whether thatfear was reasonable.

With the greatest of respect, the word 'reasonable' does not bring into play the traditional standards of proof beyonda reasonable doubt or proof on a balance of probabilities. Such a test leads precisely to the argument advanced by the respondent on thepresent appeal that the best estimates on the psychiatric evidence was that the probability of his re-offending was 26% to 31% and, as aresult, could not meet the balance of probability standard.

In my view, the application of the balance of probability standard does notdepend on the risk to the public exceeding 50%. [33] This is a preventative measure aimed at the protection of young children and which does not carry with it a criminal conviction orsanction. Equating the risk to the standard would effectively negate the purpose of the legislative provision. [34] As uncomfortable as it may be, in my view the proper approach is to look at the language of s. 810.1(3) and to determine theissue left to the court by examining whether the informant's fear is reasonable.

As Then J. put it in the trial decision in [Regina versus]Budreo (ON SC), [1996 CarswellOnt 24, Ont. Gen. Div.], it "equates to a belief, objectively established, that theindividual will commit an offence".

[35] The Concise Oxford Dictionary defines 'reasonable' as "in accordance with reason, not absurd; within the limits of reason, notgreatly less or more than might be expected ..." [22] While I accept that R. v. Dol dealt was an application under s. 810.1, in my view, the language is identical and the principles ofpreventative justice are such that the analysis applies equally to a s. 810 application and, of course, I adopt that analysis in my analysis ofthe case at bar. Analysis [23] In this case the respondent testified. The appropriate starting point, then, is to analyze his evidence in the context of the R. v.

W. (D.) (SCC), [1991] 63 C.C.C. 3rd 397 (S.C.C.) framework.

If I believe his evidence, then obviously, I would not besatisfied on the balance of probabilities that an order should be made, if I do not believe his evidence, then I must still ask myselfconsidering what I do believe of his evidence or what weight may be applied to his evidence, would I still be satisfied on the balance ofprobabilities that an order ought to be made, and finally, if I do not believe his evidence, then I must consider the evidence that I doaccept to determine whether or not, again, an order ought to be made. [24] I say without hesitation that I do not accept any of the evidence of the respondent.

The respondent was generally inconsistentand contradictory as he gave his evidence. He denied that he had committed any of the actions for which he accepted responsibilitywhen he entered into a conviction for criminal harassment and breach of his recognizance.

Indeed, he continued to deny responsibilityfor criminal behaviour for the breach of recognizance when questioned about it, about why he was at the complainant's door in 2012 or2013 when he was bound by a recognizance to have no contact with her and to stay away from her. [25] His evidence with respect to whether or not he ever saw the complainant at the local coffeehouse is completely inconsistent withthe evidence I do accept of both the complainant and the respondent's girlfriend and, in particular, the respondent's girlfriend, therespondent's own witness, when she testified that she recalled distinctly that the first time she ever saw the complainant was at the verycoffeehouse to which the complainant referred. [26] The respondent testified he did not know anything about the whereabouts of the complainant or where she lived, but on cross-examination, he virtually volunteered the name of the street on which she lived which is completely inconsistent with his professeddenials of any knowledge with respect to her. [27] The respondent pled guilty to criminal harassment in 2014 and breach of probation and he continues to deny responsibility forthose offences.

As a matter of law, I must accept his conviction as truth and, therefore, his denial is a powerfully inconsistent statementwhich taints all of his evidence. [28] I combine that with the remarkable inconsistencies between his evidence and his own witness' evidence with respect to seeingthe complainant at the coffeehouse as well as his professed ignorance with respect to the complainant's address and I find that I can putno weight whatsoever and reject entirely his evidence.

Clearly, it neither convinces me that an order ought not to be made nor forms anypart of the analysis given that I reject it entirely. [29] On the other hand, I do accept the evidence of the respondent's girlfriend who gave her evidence in an entirely forthright andcandid way even though it was inconsistent in dramatic ways with the respondent's evidence. I accept, as well, entirely the evidence ofthe complainant.

As she had been asked to do by the police, she kept detailed notes of each interaction with him and had preciserecollections. [30] Her evidence was given in a balanced and candid way and indeed she conceded that she did not question the fact that thecomplainant had entered into her sphere, for example, at the beach or at the coffeehouse by accident and did not endeavour to suggestthat he had sought her out or had stalked her or beset her, but rather her complaint limited itself to the fact that, having found himself inher presence, he did not withdraw and it was this failure to withdraw that created the fear that he would cause her more anxiety anddistress. [31] I am satisfied that the past behaviour of the respondent must be considered when I consider whether or not the fear that thecomplainant suffers was subjectively real and then whether or not that fear is objectively reasonable (R. v.

Patrick (1990) (BC SC), 75 C.R 3rd 222 (B.C.Co.Ct.)). I also agree with counsel for the respondent that the behaviour of the respondent beforethe Court on this information in virtually every incident can be seen as either trifling or inconsequential. [32] What I mean by that is in the normal course of a break-up of a relationship, even an unpleasant break-up of a relationship, thatsitting six metres away from a former partner on a beach or sitting in a coffeehouse drinking coffee in the presence of a former partnerwould not be sufficient to create even a subjectively reasonable fear in the complainant.

However, in my view, the fear in the case barmust also be viewed from the lens that, following the break-up, the complainant was subjected to a persistent and ongoing course ofbehaviour at the hands of the respondent such that he was guilty of criminal harassment. [33] I accept entirely her evidence that, as a result of this past behaviour at the hands of the complainant, she was actually in real fearof a further course of behaviour at the hands of the respondent that would cause her psychological injury, but I am also mindful, ascounsel for the respondent points out, that the complainant, as a result of the past behaviour, is also hypersensitive and perhapshypervigilant relative to any behaviours of the respondent.

As a result, every chance meeting or misfortune that befalls the complainantshe assumes immediately and fears has been caused by the respondent or, worse, is the commencement of yet another course of conductthat led to the earlier harassment charges. [34] When I consider the objective component of the fear, I am not satisfied on the balance of probabilities that the fear isobjectively reasonable. The fear is real for the complainant, but in my view, the actual behaviour of the respondent is not such that itought to have caused such fear in the complainant.

[ 35 ] It must always be remembered that the order sought strikes at the balance, on one hand, to protect the integrity of the complainant, but on the other hand, it is an order that restrains the liberty of the respondent. While I am not at all sympathetic to the respondent, I must be mindful that people's liberty must not be taken away lightly.

I appreciate that an order might be crafted that minimally invades his liberty, but in my view that does not affect the test I must apply on whether or not I would deprive the respondent of his liberty in the first instance in any manner and I must be so satisfied first before going to decide whether or how much of his liberty ought to be denied. [ 36 ] I should also say that there is a residual discretion not to impose a peace bond even if the test has been met, see R. v. Soungie at paragraph 44 .

In the case at bar, even if I am in error with respect to the law as to the objective element of the test, I would still not impose the recognizance because, in my view, while the behaviour is very troubling and indeed suspicious and I accept that it is very disturbing, it is not yet to a level where I think the criminal law ought to be engaged even on a preventative level. [ 37 ] Having said that, however, I trust that the respondent is well aware that his protestations of innocence have fallen on deaf ears and the court does not accept his denials of knowledge.

I am absolutely certain that he was well aware that the complainant was beside him on the beach on both instances and he was indifferent. This attitude is entirely consistent with his attitude of denial with respect to matters for which he has entered criminal convictions.

What I do say is that just with those three relatively short contacts and with no additional efforts to engage with the complainant, I would not deprive him of his liberty at this time. [ 38 ] Having been through the trial process, I am absolutely certain that if it were to happen again, if the respondent were to sit on a beach and, having detected the presence of the complainant, not move further down the beach, that there would be no other real conclusion that his behaviour was, in fact, a wilful attempt to cause further psychological injury to the complainant. [ 39 ] I order that these reasons be produced and filed for review in the event that any further proceedings are commenced as a result of any further incidences which may arise between the parties. [ 40 ] Mr.

Ireland, you are free to go. There will be no further orders restraining your liberty, but I do want you to understand that I do not accept a word that you have said. I think you are well aware that she was sitting beside you on the beach and you were indifferent to what anxiety you may have caused her. If you do that again, I guarantee you will be back here. The next court will accept my ruling that I do not accept anything you say and you will most certainly be bound by either a recognizance or, I would suggest, more likely a charge of criminal harassment and the risk of a significant jail sentence.

So govern yourself accordingly. (REASONS FOR JUDGMENT CONCLUDED)